Brazil’s courts are becoming central to global patent disputes. At the Rio de Janeiro Court of Appeal, Judge Victor Torres has overseen a surge in standard-essential patent (SEP) cases. Speaking ahead of this year’s AIPPI congress in Hamburg, he discussed the rapid growth of patent litigation in Brazil and the country’s new procedural framework.
A new system for patent disputes
Torres attributes the increase in cases to the country’s market size and a new procedure implemented a year and a half ago. The system provides stability and predictability, resolving disputes within approximately five months without sacrificing the depth of the analysis. Parties can produce evidence and present expert opinions during this time.
Under the new process, a filed case lands on a judge’s desk within 24 hours. A technical expert is appointed to assess the patent’s validity and infringement, with answers typically provided within four months. Before a preliminary injunction is granted, a hearing lasting up to seven hours takes place. Both parties can cross-examine the expert, and the judge asks questions to challenge the opinion. An injunction is granted only after determining there was an infringement, a valid patent, and an unsuccessful FRAND offer.
The number of SEP infringement cases filed in Brazil is now approximately twice the total number filed during the preceding decade. This growth reflects the reliability of the process. Torres warns parties of the ruling beforehand, using the same template for decisions, ensuring consistency across cases.
The previous system was less effective. Quick preliminary injunctions were often reversed on appeal. Under the new regime, the procedure from filing to preliminary injunction takes five months, and the decision is a ruling on the merits rather than an urgency-based measure. Notably, no decision made under this new procedure has ever been reversed by the appellate court.
Companies filing claims in Rio de Janeiro usually do not need to post a bond, as Brazil has treaties dismissing this requirement. All records are public because of a constitutional rule, though commercial secrets can be kept confidential through a special protocol. Brazil operates a bifurcated system, requiring a federal court challenge to validity, but defendants can argue invalidity during the infringement case. If an SEP is involved, the judge often advises parties on what constitutes a FRAND offer.
Torres said Brazilian judges can be quite assertive and resolute in ensuring decisions are enforced. They can impose fines, send representatives to jail, or seize products. Non-compliance with court orders is considered a crime in Brazil. In a recent streaming-service case, he warned that if the defendant did not comply, he would notify app stores and manufacturers to shut down the app.
Other technologies and the role of domestic companies
Torres notes that while SEP and video-streaming disputes dominate proceedings at his court, other technologies are also frequently litigated. In other states within Brazil, the court system deals with a substantial volume of patents related to agriculture, with litigation concentrated in the states of Mato Grosso do Sul, São Paulo, and Paraná.
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Brazil has seen an increase in patent filings and grants over the last year, reaching an all-time high. When companies know their intellectual property will be protected, they can trust that their research and development returns are secure.
Judge’s stance on setting royalties and judicial dialogue
Victor Torres says he is very reluctant to set a FRAND rate. He argues that courts should be extremely reluctant to assume the role of determining the price of a license unless it is generally unavoidable. He does not believe judges have the technical expertise or market experience to do this. There is no undisputed methodological, scientific, or economic way to set these rates. He believes that rate-setting risks turning SEP litigation into a form of “guess the number I have in mind”.
Torres expects to listen more and talk less at the AIPPI congress. He believes judges should exercise judicial modesty and present a united front. Parties will try to pit one court against another to find the best strategy. Torres thinks judges should emphasize shared values and core principles instead of talking about their differences. He plans to find out what can be best incorporated into the practice of his court.
Setting royalty rates and judicial modesty
Torres also addresses the conflict between the UPC and the UK High Court over jurisdiction in SEP lawsuits. He notes that this tug-of-war has reached Brazil. A UK court granted an injunction to claim lead jurisdiction in a case he was presiding over, but the parties settled before he could respond.
He clarifies that Brazilian law does not interfere with other jurisdictions and will not accept interference from other courts. The Supreme Court of Brazil has established a precedent preventing this. However, Torres is open to dialogue, noting that a colleague recently issued an order to establish judicial dialogue.
Torres views Brazil as a relevant protagonist in global patent disputes. Because Brazilian courts are faster, they often get the first say in parallel global cases. Sometimes, parties settle in Brazil before cases proceed to European courts. He believes this first ruling requires a greater duty to examine cases thoroughly and engage with international arguments, rather than assuming the court has the definitive answer.
While developing its own approach, Brazil does not mirror the practices of European, American, or Chinese courts. However, Torres acknowledges that many questions have already been answered in these jurisdictions. He follows the reasoning of other courts to incorporate the history of precedents into his own decisions.
